Authorized to Work but Status is Unlawful

May an alien be considered to be in unlawful status even though he or she is authorized to work? In the recent case of Bokhari v. Holder, the Court of Appeals for the 5th Circuit said yes.

The decision has been criticized by some immigration lawyers as an “immigration absurdity” and one that “defies logic.”

In this case, Bokhari entered the United States on April 9, 2001 as a B-2 nonimmigrant. His B-2 status was extended through October 9, 2002. On June 11, 2002 his status changed to L-1A nonimmigrant worker (intracompany transferee).

His employer applied for an extension of his L-1A status on June 09, 2003, one day before its expiration. The application was denied on March 19, 2004. His employer appealed but the appeal was denied.

On June 8, 2004 his employer filed an I-140 (employment-based) visa petition on his behalf and simultaneously, Bokhari filed for adjustment of status. The I-140 petition was approved but the adjustment of status was denied. The denial was based on the ground that Bokhari had failed to maintain lawful immigration status for more than 180 days before filing the application. Section 245k of the Immigration and Nationality Act allows an alien who is out of status to file an adjustment application if his or her unlawful status lasted less than 180 days.

Because of the denial of his adjustment application, Bokhari was placed under deportation proceedings. During the hearing, Bokhari claimed that he was eligible for adjustment but the Immigration Judge ruled that he was not eligible because the application was filed more than 180 days after his L-1A status expired on June 10, 2003.

Bokhari appealed to the Board of Immigration Appeals. He argued that he was in lawful status until his extension application was denied on March 19, 2004. He asserted that he was in lawful status from the expiration of his L-1A on June 10, 2003 through March 19, 2004 because immigration regulations allowed him to work during that period. The regulation that he cited authorizes an alien to continue working for 240 days while the extension application is pending.

The Board of Immigration Appeals denied his appeal and stated that although he had been authorized to work, the work authorization did not provide him lawful immigration status.

In his appeal to the Court of Appeals he argued that the Board of Immigration Appeals misinterpreted the immigration regulation and the statute. He claimed that the automatic employment authorization provided by the regulation logically gave him lawful immigration status.

The Department of Homeland Security (DHS) on the other hand contended that employment authorization is not a grant of lawful immigration status. It said that they are two different issues and that the extension application did not confer lawful status.

The Court of Appeals agreed with the DHS. It held that the employment authorization provided to Bokhari under immigration regulations did not provide him with lawful status. The Court pointed out that the term “lawful immigration status,” is granted to nonimmigrants “whose initial period of admission has not expired or whose nonimmigrant status has been extended,” Bokhari, said the Court, was in unlawful status after June 10, 2003 and was thus ineligible to have his status adjusted to that of a permanent resident.